Court of Appeals issues order for rehearing on OWI case

The Indiana Court of Appeals has sent a motion to dismiss back to the Jefferson County Superior Court for a rehearing.

The case of Michael E. McClellan will return for another hearing on the motion to dismiss. Due to the length of time that had passed from the time prosecutors filed charges until McClellan's arrest, McClellan's ability to appropriately defend for a speedy trial would be impaired, the court ruled.

The decision prompted the Superior Court to rehear the motion to dismiss, giving prosecutors a chance to rebut the claim.

Police pulled over McClellan in August 2009 on suspicion of operating a vehicle while intoxicated. Because of a medical condition, he could not take a breath test, but he consented to a blood draw.

McClellan's license listed a Milton, Ky., address, but he was on home detention at a residence in Hanover from December 2009 until January 2011.

Prosecutors received a toxicology report in May 2010, and filed two charges of operating a vehicle while intoxicated against McClellan.

But officers didn't serve McClellan's warrant until November 2012. A summons and two previous warrants were sent to his Milton, Ky., address and never received.

Judge Margret Robb wrote in the opinion that the delay of two years and five months from the traffic stop until the date of his arrest was "presumptively prejudicial," and McClellan should not be held responsible for the address confusion.

"Under these particular facts, where the State had actual notice of McClellan's address because he was on home detention through the same court in the same county, the reason for the delay is attributable to the State," she wrote. Judges Elaine Brown and Michael Barnes agreed with the opinion.

McClellan filed a motion to dismiss in January 2013, saying his due process rights had been violated because of the lengthy delayed between the traffic stop and his arrest.

Judge Alison Frazier denied the motion to dismiss, saying prosecutors acted properly by waiting for toxicology results before charging him and the State had no duty to look for an address other that the one provided on McClellan's license.